UK Guidance on Returning to the Workplace: Managing Health and Safety Issues during the COVID-19 Pandemic

Following the UK government’s recent announcement of a COVID-19 recovery strategy, the government has published guidelines for working safely during the coronavirus (COVID-19) pandemic that are designed to help UK businesses get back on their feet whilst maintaining safe work environments. The new guidelines, which apply from 13 May 2020, were prepared by the Department for Business, Energy and Industrial Strategy (BEIS) with input from firms, unions, industry bodies, and the devolved administrations in Wales, Scotland, and Northern Ireland, and in consultation with Public Health England (PHE) and the Health and Safety Executive (HSE), in order to facilitate the safest return to work possible.

The new guidelines cover the following eight workplace settings:

• Construction and other outdoor work
• Factories, plants, and warehouses
• Labs and research facilities
• Offices and contact centres
• Other people’s homes
• Restaurants offering takeaway or delivery
• Shops and branches
• Vehicles

The purpose of the guidance is to provide employers with practical steps to identify the risks that COVID-19 presents in the workplace and to enable employers to mitigate the issues safely, depending on the type of business and workplace environment. The new guidelines do not replace any existing legal obligations, such as an employer’s health and safety duties. There is a legal requirement under Regulation 3 of the Management of Health and Safety at Work Regulations 1999, which implements the Health and Safety at Work etc. Act (HSWA) 1974, that “[e]very employer shall make a suitable and sufficient assessment of—

• the risks to the health and safety of [its] employees to which they are exposed whilst they are at work; and
• the risks to the health and safety of persons not in [its] employment arising out of or in connection with the conduct by [the employer] of [its] undertaking,

for the purpose of identifying the measures [the employer] needs to take to comply with the requirements and prohibitions imposed [by the HSWA] and by Part II of the Fire Precautions (Workplace) Regulations 1997.”

Employers that fail to comply with the risk assessment requirements can be found liable to employees for injuries and losses proven to have been caused or contributed to by that failure. Failure to comply with these requirements can have serious consequences for both organisations and individuals, as those found guilty are liable for fines and imprisonment. In addition, under Section 2(1) of the Company Directors Disqualification Act 1986, a “court may make a disqualification order against a person where he is convicted of an indictable offence … in connection with … the management of a company’s property.”

The first section of the government’s guidance for each of the eight workplace settings focuses on the objective of all employers carrying out COVID-19 risk assessments. The guidance states that employers “have a legal responsibility to protect workers and others from risk to their health and safety” and provides steps that are “usually” necessary to protect employees returning to work. There is not a specific COVID-19 risk assessment template that must be followed, but risk assessments “must be done in consultation with unions or workers.” Employers must identify:

• the hazards;
• who is affected;
• the control measures (making sure they are reliable and suitable); and
• the rate of the risk.

Key questions that employers can ask when assessing risk include the following:

• Can the business maintain social distancing at all times and how can it be enforced? For example, does the business need to rearrange workstations or set up screens or barriers? Does the business need to reduce the number of employees who are permitted to be in the workplace at one time?
• How is the business going to ensure that the workplace is cleaned regularly during the day and at the end of each day whilst the pandemic is ongoing?
• Is the use of personal protective equipment (PPE) necessary within the workplace to enable employees to carry out their duties safely?
• Will the business enquire into employees’ health or the health of their households?
• How will the business manage common areas (such as kitchens and restrooms) to ensure that social distancing is maintained?
• How will the business communicate the changes to its employees?

The government expects businesses with more than 50 employees to publish on their websites the results of their risk assessments. Whilst there is not a statutory requirement to comply, noncompliance could result in negative reputational consequences and/or employee complaints to the HSE. A report to the HSE could prompt an HSE inspection, which could, in turn, lead to a finding of other areas of noncompliance that could carry criminal penalties for the business.

The new guidance sets forth preventative measures that employers can carry out to reduce workplace risk “to the lowest reasonably practicable level.” Among the first steps is making every effort to enable employees to work from home. If working from home is not possible, employers “should make every reasonable effort to comply with the social distancing guidelines set out by the government (keeping people 2m apart wherever possible).” Where social distancing guidelines cannot be implemented, the guidance states that employers will need to consider how important a specific activity is to their operations. The guidance further states that if an employer determines that a particular activity is vital, all possible mitigating actions should be taken to reduce the risk of coronavirus transmission.

Each of the eight sector guides addresses a number of mitigating actions with respect to the following areas of focus:

Who should go to work

This area of focus addresses who should be in the workplace and the planning necessary to reach the “minimum number of people needed on site to operate safely and effectively.” A core objective is to protect employees who are at higher risk and those who need to self-isolate.

Social distancing at work

Employers will need to determine ways for “staggering arrival and departure times at work to reduce crowding into and out of the workplace,” whilst also taking into consideration employees with protected characteristics. Employers will also need to look at social distancing measures for all parts of the workplace, including entrances and exits, restrooms, canteens, break rooms, and stairwells, in addition to where employees spend most of their time. “Using markings and introducing a one-way flow at entry and exit points” is suggested, as well as providing handwashing facilities at said points.

Managing customers, visitors, and contractors

To “minimise the number of unnecessary visits” to the workplace, employers can encourage visits via remote connection, “[limit] the number of visitors at any one time,” or restrict access to required visitors only. The guidelines state that employers should explain “site guidance on social distancing and hygiene to visitors on or before arrival.”

Cleaning the workplace

Employers are required to ensure the “frequent cleaning of work areas and equipment between uses.” Signs and posters should be used “to help everyone keep good hygiene through the working day.” Providing additional handwashing facilities and hand sanitiser onsite—not just in restrooms—is one of the recommended steps.

PPE and face coverings

The guidance emphasises that COVID-19 “needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE.” The exception is clinical settings such as hospitals, for which there is separate guidance from the government and the PHE. The guidance does, however, advise employers to support employees who do choose to wear face coverings.

Workforce management

The guidance recommends splitting the workforce into teams or shift groups so that where contact is unavoidable, it happens between the same people each time. The guidance also recommends minimising nonessential travel and the number of people in a vehicle who have to travel together.

Inbound and outbound goods

The objective of this section of the guidance is to “maintain social distancing and avoid surface transmission when goods enter and leave the site.” Steps the guidance recommends include “[r]evising pick-up and drop-off collection points, procedures, signage and markings,” and reducing “unnecessary contact at gatehouse security, yard and warehouse [locations].” The guidance also states that where possible and safe, employers should have single workers load or unload vehicles, or use the same pairs of people where more than one person is needed.

The guidance states that in the case of an emergency, such as accident or fire, people do not have to maintain social distancing if it would be unsafe. Employers may decide to delay fire drills during the pandemic and instead want to conduct a 10-minute talk, as a reminder of what should be done during a fire.”

The government recommends employers display the Staying COVID-19 Secure in 2020 notice in their workplaces to show they have followed the “Working safely during coronavirus (COVID-19)” guidance. This notice includes an HSE contact number for workers to report any concerns that they may have.

The guidelines state that if a local authority or the HSE finds that businesses are not taking actions to comply with public health legislation and guidance to control public health risks, a number of actions could be taken by the HSE to improve the control of workplace risks. These actions range from the HSE’s providing specific guidance to issuing enforcement notices to help secure improvements.

As part of the 10 May 2020 announcement, the government has made available to the HSE an extra £14 million (equivalent to an extra 10 percent of the HSE budget) for extra call centre staff, inspectors, and equipment. This suggests that although the HSE stated that it would take a flexible and proportionate approach to risks arising from the COVID-19 pandemic, if businesses are found not to have planned properly for a safe return to work, the HSE may go beyond the issuing of enforcement notices and place employers under greater scrutiny.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.

Daniella McGuigan is a partner is the London office of Ogletree Deakins.

Carrie-Ann Hopkins is a paralegal in the London office of Ogletree Deakins.